HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Bellinger (FC) (Appellant) v. Bellinger

[2003] UKHL 21

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. Can a person change the sex with which he or she is born? Stated in an over-simplified and question-begging form, this is the issue raised by this appeal. More specifically, the question is whether the petitioner, Mrs Elizabeth Bellinger, is validly married to Mr Michael Bellinger. On 2 May 1981 Mr and Mrs Bellinger went through a ceremony of marriage to each other. Section 1(c) of the Nullity of Marriage Act 1971, re-enacted in section 11(c) of the Matrimonial Causes Act 1973, provides that a marriage is void unless the parties are 'respectively male and female'. The question is whether, at the time of the marriage, Mrs Bellinger was 'female' within the meaning of that expression in the statute. In these proceedings she seeks a declaration that the marriage was valid at its inception and is subsisting. The trial judge, Johnson J, refused to make this declaration: see [2001] 1 FLR 389. So did the Court of Appeal, by a majority of two to one: see [2001] EWCA Civ 1140, [2002] 2 WLR 411. The majority comprised Dame Elizabeth Butler-Sloss P and Robert Walker LJ. Thorpe LJ dissented.

2. In an alternative claim, advanced for the first time before your Lordships' House, Mrs Bellinger seeks a declaration that section 11(c) of the Matrimonial Causes Act 1973 is incompatible with articles 8 and 12 of the European Convention on Human Rights. The Lord Chancellor has intervened in the proceedings as the minister with policy responsibility for that statutory provision.

3. Mrs Bellinger was born on 7 September 1946. At birth she was correctly classified and registered as male. That is common ground. For as long as she can remember, she felt more inclined to be female. She had an increasing urge to live as a woman rather than as a man. Despite her inclinations, and under some pressure, in 1967 she married a woman. She was then twenty one. The marriage broke down. They separated in 1971 and were divorced in 1975.

4. Since then Mrs Bellinger has dressed and lived as a woman. She underwent treatment, described below. When she married Mr Bellinger he was fully aware of her background. He has throughout been entirely supportive of her. She was described on her marriage certificate as a spinster. Apart from that, the registrar did not ask about her gender status, nor did Mrs Bellinger volunteer any information. Since their marriage Mr and Mrs Bellinger have lived happily together as husband and wife, and have presented themselves in this way to the outside world.

The indicia of sex and transsexual people

5. The indicia of human sex or gender (for present purposes the two terms are interchangeable) can be listed, in no particular order, as follows. (1) Chromosomes: XY pattern in males, XX in females. (2) Gonads: testes in males, ovaries in females. (3) Internal sex organs other than the gonads: for instance, sperm ducts in males, uterus in females. (4) External genitalia. (5) Hormonal patterns and secondary sexual characteristics, such as facial hair and body shape: no one suggests these criteria should be a primary factor in assigning sex. (6) Style of upbringing and living. (7) Self-perception. Some medical research has suggested that this factor is not exclusively psychological. Rather, it is associated with biological differentiation within the brain. The research has been very limited, and in the present state of neuroscience the existence of such an association remains speculative.

6. In the vast majority of cases these indicia in an individual all point in the same direction. There is no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual. In such cases classification of the individual as male or female is best done by having regard to all the factors I have listed. If every person has to be classified as either male or female, that is the best that can be done. That was the course, in line with medical opinion, followed by Charles J in W v W (Physical Inter-sex) [2001] Fam 111, 146d-f. That is not the problem arising in the present case.

7. Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent. Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex. Mrs Bellinger is such a person. The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.

8. The treatment of this condition depends upon its severity and the circumstances of the individual. In severe cases conventional psychiatric treatment is inadequate. Ultimately the most that medical science can do in order to alleviate the condition is, in appropriate cases, to rid the body of its intensely disliked features and make it accord, so far as possible, with the anatomy craved. This is done by means of hormonal and other treatment and major surgery, popularly known as a 'sex change' operation. In this regard medical science and surgical expertise have advanced much in recent years. Hormonal treatment can change a person's secondary sexual characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly difficult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete.

9. Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the 'real life experience'), and finally, in suitable cases, gender reassignment surgery. In February 1981 Mrs Bellinger, having been through the previous stages of treatment, successfully underwent this form of surgery. This involved removal of her testes and penis and, in the words of Johnson J, 'the creation of an orifice which can be described as an artificial vagina, but she was still without uterus or ovaries or any other biological characteristics of a woman.' A chromosomal test, dated 8 April 1999, showed her to have a karyotype 46XY pattern, an apparently normal male karyotype.

10. For completeness I should mention in passing that a transsexual person is to be distinguished from a homosexual person. A homosexual is a person who is attracted sexually to persons of the same sex. Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratification, enjoys dressing in the clothes of the opposite sex.

The present state of the law

11. The present state of English law regarding the sex of transsexual people is represented by the well known decision of Ormrod J in Corbett v Corbett [1971] P 83, 104, 106. That case, like the present one, concerned the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod J held that, in this context, the law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, that should determine a person's sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

12. In R v Tan [1983] QB 1053, 1063-1064, the Court of Appeal, comprising May LJ and Parker and Staughton JJ, applied the Corbett approach in the context of criminal law. The court upheld convictions which were dependent on Gloria Greaves, a post-operative male to female transsexual, still being in law a man. In S-T (formerly J) v J [1998] Fam 103, 122, a case of a female to male transsexual, the correctness of the decision in Corbett seems not to have been challenged. But Ward LJ suggested that the decision would bear re-examination.

13. The decision in Corbett has attracted much criticism, from the medical profession and elsewhere. The criteria for designating a person as male or female are complex. It is too 'reductionistic' to have regard only to the three Corbett factors of chromosomes, gonads and genitalia. This approach ignores 'the compelling significance of the psychological status of the person as a man or a woman'. Further, the application of the Corbett approach leads to a substantially different outcome in the cases of a post-operative inter-sexual person and a post-operative transsexual person, even though, post-operatively, the bodies of the two individuals may be remarkably similar.

14. In overseas jurisdictions Corbett has not been universally followed. It was followed, for instance, in South Africa in W v W (1976) (2) SALR 308 and in Canada in M v M (A) (1984) 42 RFL (2d) 267. But more recently the trend has been in the opposite direction. Thus, for instance, in New Zealand and Australia post-operative transsexuals' assigned sex has been recognised for the purpose of validating their marriages. In New Zealand in Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603, 630, Ellis J noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex. He held there is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. An adequate test is whether the person in question has undergone surgical and medical procedures that have effectively given the person the physical conformation of a person of a specified sex.

15. In Australia Chisholm J reached a similar conclusion in Re Kevin (validity of marriage of transsexual) [2001] Fam CA 1074, a case decided after the decision of the Court of Appeal in the present case. Chisholm J's extensive judgment contains a powerful critique of the existing law and a useful review of international developments. Having regard to the view I take of this case, it is not necessary for me to elaborate on his views. Suffice to say, his conclusion was that there is no 'formulaic solution' to determining the sex of an individual for the purpose of the law of marriage. All relevant matters need to be considered, including the person's life experiences and self-perception. Post-operative transsexual people will normally be members of their reassigned sex.

16. This decision was the subject of an appeal. Very recently, on 21 February 2003, the full court of the Federal Family Court dismissed the appeal: Appeal no. EA/97/2001 (unreported). The judgment of the full court contains an invaluable survey of the authorities and the issues. The court concluded that in the relevant Commonwealth marriage statute the words 'man' and 'woman' should be given their ordinary, everyday contemporary meaning. Chisholm J. was entitled to conclude, as a question of fact, that the word 'man' includes a post-operative female to male transsexual person. The full court left open the 'more difficult' question of pre-operative transsexual persons.

The decisions of the courts below

17. The trial judge, Johnson J, recognised there has been a marked change in social attitudes to problems such as those of Mrs Bellinger since Corbett v Corbett [1971] P 83 was decided in 1970. The law on this matter in this country is, or is becoming, a minority position, at least so far as Europe is concerned. But the law is clear, and as a judge he had to accept the law as it is. What is also clear is that this is no simple matter. Potentially there are serious implications to be considered in relation to the law of marriage and other areas of life: see [2001] 1 FLR 389, 402.

18. Likewise, the majority of the Court of Appeal, having considered up to date medical evidence, adhered to the Corbett approach. The three criteria relied upon by Ormrod J remain the only basis upon which to decide upon the gender of a child at birth. There is, in informed medical circles, a growing momentum for recognition of transsexual people for every purpose and in a manner similar to those who are inter-sexed. This reflects changes in social attitudes as well as advances in medical research. But recognition of a change of gender for the purposes of marriage would require some certainty regarding the point at which the change takes place. This point is not easily ascertainable. At what point would it be consistent with public policy to recognise that a person should be treated for all purposes, including marriage, as a person of the opposite sex to that which he or she was correctly assigned at birth? This is a question for Parliament, not the courts: see [2002] 2 WLR 411, 434-436, paras 97-109.

19. In his dissenting judgment Thorpe LJ questioned whether it was right, particularly in the context of marriage, to make the chromosomal factor conclusive, or even dominant. It is an invisible feature of an individual, incapable of perception other than by scientific test. In the context of the institution of marriage as it is today it is right to give predominance to psychological factors and to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth: [2002] 2 WLR 411, 449, para 155.

The European Court of Human Rights

20. This issue has been before the European Court of Human Rights on several occasions in the last twenty years. During this period the development of human rights law on this issue has been remarkably rapid. Until very recently the court consistently held that application of the Corbett criteria, and consequent non-recognition of change of gender by post-operative transsexual persons, did not constitute a violation of article 8 (right to respect for private life) or article 12 (right to marry): Rees v United Kingdom (1986) 9 EHRR 56, Cossey v United Kingdom (1990) 13 EHRR 622, and Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163. It is to be noted, however, that in the latter case the court was critical of the United Kingdom's apparent failure to take any steps to keep this area of the law under review. There is, the court said, an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexual people encounter. The court reiterated that this area 'needs to be kept under review by Contracting States': para 60.

21. In its most recent decision the court has taken the view that the sands of time have run out. The United Kingdom's margin of appreciation no longer extends to declining to give legal recognition to all cases of gender reassignment. This was the decision of the court, sitting as a grand chamber, in the case of Goodwin v United Kingdom (2002) 35 EHRR 18. Judgment was given in July 2002, that is, after the Court of Appeal gave its judgment in the present case. Christine Goodwin was a post-operative male to female transsexual. The court held unanimously that the United Kingdom was in breach of articles 8 and 12.

22. The court's judgment was wide-ranging. As it happens, this was not a 'marriage' case. Christine Goodwin had married as a man and later been divorced. Her complaint was that in several respects she, as a post-operative transsexual person, was not treated fairly by the laws or practices of this country. She was unable to pursue a claim for sexual harassment in an employment tribunal because she was considered in law to be a man. She was not eligible for a state pension at 60, the age of entitlement for women. She remained obliged to pay the higher car insurance premiums applicable to men. In many instances she had to choose between revealing her birth certificate and foregoing advantages conditional upon her producing her birth certificate. Her inability to marry as a woman seems not to have been the subject of specific complaint by her. But in its judgment the court expressed its views on this and other aspects of the lack of legal recognition of her gender reassignment.

23. Some of the main points in the judgment of the court can be summarised as follows. In the interests of legal certainty, foreseeability and equality before the law the court should not depart, without good reason, from precedents laid down in previous cases. But the court must have regard to changing conditions within the respondent state and within contracting states generally. The court must respond to any evolving convergence on the standards to be achieved: para 74. A test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual: para 100. With increasingly sophisticated types of surgery and hormonal treatments the principal unchanging biological aspect of gender identity is the chromosomal element. It is not apparent that this must inevitably be of decisive significance: para 82. The court recognised that it is for a contracting state to determine, amongst other matters, the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected. But it found 'no justification for barring the transsexual from enjoying the right to marry under any circumstances': para 103.

24. This decision of the court was essentially prospective in character. The court made this plain. Until 1998, the date of the decision in Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, the court had found that the United Kingdom's treatment of post-operative transsexual people was within this country's margin of appreciation and that this treatment did not violate the Convention. By the Goodwin decision the court found that 'the situation, as it has evolved, no longer falls within the United Kingdom's margin of appreciation': paras 119-120 (emphasis added).

Developments since the Goodwin decision

25. This decision of the European Court of Human Rights prompted three developments. First, in written answers to the House of Commons on 23 July 2002, the Parliamentary Secretary to the Lord Chancellor's Department noted that the interdepartmental working group on transsexual people had been reconvened. Its terms of reference include re-examining the implications of granting full legal status to transsexual people in their acquired gender. The minister stated that the working group had been asked to consider urgently the implications of the Goodwin judgment.

26. The second development has an important bearing on the outcome of this appeal. On 13 December 2002 the government announced its intention to bring forward primary legislation which will allow transsexual people who can demonstrate they have taken decisive steps towards living fully and permanently in the acquired gender to marry in that gender. The legislation will also deal with other issues arising from the legal recognition of acquired gender. A draft outline Bill will be published in due course.

27. The third development was that before your Lordships' House counsel for the Lord Chancellor accepted that, from the time of the Goodwin decision, those parts of English law which fail to give legal recognition to the acquired gender of transsexual persons are in principle incompatible with articles 8 and 12 of the Convention. Domestic law, including section 11(c) of the Matrimonial Causes Act 1973, will have to change.

Gender reassignment

28. The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilise the female's eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.

29. This approach did not give rise to legal difficulty before the advent of gender reassignment treatment. This was noted by Lord Reed in his article 'Splitting the difference: transsexuals and European Human Rights law' (September 2000). Gender identity disorder seems always to have existed. But before the advent of gender reassignment treatment a claim by a transsexual person to be recognised in his or her self-perceived gender would have been hopeless. The anatomy of his or her body of itself would have refuted the claim.

30. The position has now changed. Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment. The anatomical appearance of the body can be substantially altered, by forms of treatment which are permissible as well as possible. It is in these changed circumstances that society is now facing the question of how far it is prepared to go to alleviate the plight of the small minority of people who suffer from this medical condition. Should self-perceived gender be recognised?

31. Recognition of gender reassignment will involve some blurring of the normally accepted biological distinction between male and female. Some blurring already exists, unavoidably, in the case of inter-sexual persons. When assessing the gender of inter-sexual persons, matters taken into account include self-perception and style of upbringing and living. Recognition of gender reassignment will involve further blurring. It will mean that in law a person who, unlike an inter-sexual person, had all the biological characteristics of one sex at birth may subsequently be treated as a member of the opposite sex.

32. Thus the circumstances in which, and the purposes for which, gender reassignment is recognised are matters of much importance. These are not easy questions. The circumstances of transsexual people vary widely. The distinction between male and female is material in widely differing contexts. The criteria appropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport.

33. Stated very shortly, this is the setting for the legal issues arising on this appeal, to which I now turn.

Gender and marriage: part of a wider problem

34. My Lords, I am profoundly conscious of the humanitarian considerations underlying Mrs Bellinger's claim. Much suffering is involved for those afflicted with gender identity disorder. Mrs Bellinger and others similarly placed do not undergo prolonged and painful surgery unless their turmoil is such that they cannot otherwise live with themselves. Non-recognition of their reassigned gender can cause them acute distress. I have this very much in mind.

35. I also have in mind that increasingly, in the more compassionate times in which we live, there is an international trend towards recognising gender reassignment and not condemning post-operative transsexual people to live in what was aptly described by the European Court of Human Rights in the Goodwin case as an intermediate zone, not quite one gender or the other. And in this country gender reassignment has already received legal recognition for some purposes, for example, for the purpose of the discrimination legislation, in section 2A of the Sex Discrimination Act 1975. This section was introduced into the statute by the Sexual Discrimination (Gender Re-assignment) Regulations 1999 (SI 1999/1102).

36. Despite this, I am firmly of the view that your Lordships' House, sitting in its judicial capacity, ought not to accede to the submissions made on behalf of Mrs Bellinger. Recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 would necessitate giving the expressions 'male' and 'female' in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex.

37. This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.